Sunday, January 21, 2007

Ableman v. Booth XVIII: Justice Crawford on Federal Power

Justice Crawford then turned to "the question of greatest moment," upon which "a decision or opinion . . . is most desired in this case," namely that relating to "the constitutional power of congress to enact" the Fugitive Slave Law of 1850.

After briefly reciting the arguments of the parties, Justice Crawford summarized his conclusion: "I am satisfied that congress has the constitutional power to legislate upon the subject of fugitives from service or labor, in order to give effect to" the Fugitive Slave Clause.

In elaborating upon his conclusion, Justice Crawford distinguished between how he would rule on the issue "[i]f this were a new question," i.e., not previously discussed and decided by other courts, and how he felt compelled to rule given those earlier decisions. The discussion is worth reviewing in some detail.

Justice Crawford stated that, in the absence of other decisions, he would have likely held that both federal and state governments had concurrent power to enforce the Fugitive Slave Clause, with the proviso that states could not enact legislation that was inconsistent with federal legislation:

"If this were a new question, and I did not feel the control of former adjudications by tribunals composed of men of the most eminent endowments, I would incline to the belief that the power to legislate upon this subject, while it belonged to congress in virtue of the constitution, might be properly exercised by the several states. In other words, that the power is concurrent, and so long as the state legislation is not repugnant to or inconsistent with the provisions made by congress, it is permissible. This is, I think, a necessary conclusion from the language of the constitution itself, where it declares that the fugitive 'shall be delivered up on the claim of the party to whom such service or labor may be due.' The injunction thus imposed upon the states is no less obligatory upon them than is any other provision contained in their respective constitutions . . .."

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